SMALLWOOD v. HOLDER

SMALLWOOD v. HOLDER
1960 OK 7
348 P.2d 849
Case Number: 38543
Decided: 01/19/1960
Supreme Court of Oklahoma

BEULAH SMALLWOOD, PLAINTIFF IN ERROR,
v.
FLOYD HOLDER, DEFENDANT IN ERROR.

Syllabus

¶0 1. Rights acquired under a contract may be abandoned by agreement or conduct clearly indicating such purpose, but to constitute an abandonment of rights an actual intent to abandon must be shown.
2. Acts and conduct of parties relied on as constituting an abandonment of a contract must be clearly established and must be inconsistent with existence of the contract.
3. Record examined and held: Findings that parties to a contract executed same; that contract was not abandoned and that contract is valid and subsisting are not clearly against weight of the evidence.
4. In an action of equitable cognizance involving validity of a lease contract, it is not error for court to decline to determine amount of rent, if any, due under contract where (1) said matter is not an issue under the pleadings; (2) the parties were unprepared to present evidence on said matter; and (3) one of the interested parties is not a party to the action.

Appeal from the District Court of Custer County; W.P. Keen, Judge.
Action by plaintiff in error to quiet title to 80 acres of land and to determine validity of lease by her grantor to defendant in error covering said land and 800 acres of other land. Plaintiff in error contends that her grantor did not execute lease, and in the alternative that the parties to the lease abandoned same. From judgment sustaining validity of lease, plaintiff in error appeals. Affirmed.

Donald B. Darrah, Durant, Meacham, Meacham & Meacham, Clinton, for plaintiff in error.
Arney, Barker & Donley, Clinton, for defendant in error.

BERRY, Justice.

¶1 The only material difference in the issues presented by this appeal and those presented in Appeal No. 38,547, Lewter v. Holder, Okl.Sup.,

¶2 The trial court found and held that the deed was valid and defendant in error did not appeal. In view of the fact that defendant in error was in possession of the 80, she is charged with notice of the rights that he asserts under the lease in controversy. See cases cited under West's Okla. Dig., Vol. 14, Part I, Vendor and Purchaser.

¶3 [348 P.2d 851] W.A. Lewter, executor of the estate of Ed Holder, deceased, is not a party to this action.

¶4 The parties stipulated in the lower court that the evidence introduced in No. 38,547 (No. 11,238 in the lower court) should be considered, insofar as applicable, as having been introduced in this case.

¶5 With the exceptions above noted, our opinion in No. 38,547 is determinative of the issues presented by this appeal and is, therefore, adopted where applicable as our opinion herein.

¶6 Affirmed.